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Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.
-- APPLICATION OF THE CONVENTION
[p.28] GENERAL AND HISTORICAL
This Article is one of the most important in the Convention in view of the notable extension which it involves in the applicability of the latter.
The earlier Conventions were silent as to the conditions calling for their application. They were obviously intended for use in time of war. In the absence of any other indication, it was generally agreed that this meant only international war, regularly declared, with recognition on either side that a state of war existed. It is intelligible that this should have been so. Until recent times war was ordinarily preceded by a regular diplomatic ceremonial. Before there was any resort to arms, there was a declaration of war by one of the opposing parties, followed by the inauguration of a state of war by both belligerents with all the legal consequences which that entailed, both in relation to nationals and in relation to enemy nationals and enemy property. Consequently, in those days, in theory, where war had not been declared, or the state of war had not been recognized by one of the parties for one reason or another (e.g. the non-recognition by one party of the Government of the other party), the applicability of the Convention might be contested. The danger arising in such cases is obvious. There had been too many cases where the contested legitimacy of the enemy Government, or the temporary disappearance of sovereign States as a result of annexation or capitulation, had been invoked as pretexts for not observing one or other of the Conventions. The need for a remedy to this state of affairs had become urgent. Moreover the development in the whole conception of humanitarian Conventions pointed the same way. It has already been said that the Conventions are coming to be regarded less and less as contracts on a basis of reciprocity concluded in the national interest of each of the parties, and more and more as solemn affirmations of principles respected for their own sake, and as a series of unconditional engagements on the part of each of the Contracting Parties ' vis-à-vis ' the others. A State does not proclaim the principle of the protection due to wounded and sick combatants in the hope of saving a certain number of its own nationals. It does so out of respect [p.29] for the human person
as such. This being so, it is difficult to admit that this sentiment of respect has any connection with the concrete fact of recognition of a state of war. A wounded soldier is not more deserving, or less deserving, of medical treatment according to whether his Government does, or does not, recognize the existence of a state of war. The XVIth International Red Cross Conference had, moreover, drawn attention as long ago as 1938 to the necessity of providing in any future revision of the Conventions for their application to undeclared as well as to declared wars. It was only natural that the question should be raised again after the cruel experiences of the Second World War.
The International Committee of the Red Cross took the matter up. The Preliminary Conference of National Red Cross Societies, which it convened in 1946, fell in with the views of the Committee, and recommended that a new Article, worded as follows, should be introduced at the beginning of the Convention: "The present Convention is applicable between the High Contracting Parties from the moment hostilities have actually broken out, even if no declaration of war has been made and whatever the form that such armed intervention may take". (1)
The Conference of Government Experts, which was also convened by the International Committee, in its turn recommended that the Conventions should be applicable to "any armed conflict, whether the latter is or is not recognized as a state of war by the parties concerned", and also "in cases of occupation of territories in the absence of any state of war". (2)
Taking into account the recommendations of these two Conferences, which tallied incidentally with its own opinion, the International Committee of the Red Cross drew up a draft text, which was adopted by the XVIIth International Red Cross Conference and subsequently became Article 2 of the Convention, as cited above, less the last sentence of the third paragraph.
There was no discussion on the Committee's proposal, the experience of the Second World War having convinced all concerned of the necessity [p.30] of including the provisions in question in the new Convention. But that was not sufficient. The draft text said nothing about the relations between a belligerent, or belligerents, party to the Convention on the one hand and a belligerent, or belligerents, not party to the Convention on the other hand. International Conventions engage only those who are parties to them. There could be no question, therefore, of making the Convention binding on States deliberately remaining outside it. Nor could the signatory Powers themselves be said in strict law to be bound by its provisions in relation to others not parties to it. But here once more the interests at stake (namely, human lives), and the upholding of the principles on which civilization is based, are too important to be circumscribed by rigid rules.
It was natural, therefore, to wonder whether belligerents parties to the Convention should not, to some extent at any rate, be bound in relation to opponents who were not parties to it.
The question had already arisen incidentally in connection with the drafting of Article 25 of the 1929 Convention
. It had been suggested that on the outbreak of hostilities the signatory belligerents should ask the non-signatory belligerents to undertake to observe the Convention, leaving the signatories free, in the event of a refusal by the non-signatories, to decide whether they for their part would, or would not, respect it. (3) The suggestion, which as it was put forward was hesitant and exploratory in character, was rejected. But the idea was in the air. The experiences of the Second World War lent it new force; and the International Committee of the Red Cross sought to put it into legal shape.
The ideal solution obviously would have been to require all Parties to a conflict to apply the Convention in every case, that is to say, even in relation to an opponent not party to the Convention. But the International Committee of the Red Cross could not shut its eyes to the fact that the signature of the Conventions rested with the Governments and, however bold one should be on an issue touching human lives, it was necessary to take certain practical considerations into account, if it was desired to embody such ideas in legal texts. Accordingly the Committee suggested to the Governments represented at the Diplomatic Conference of 1949 that the two following sentences should be added to Article 2:
[p.31] "In the event of an international conflict between one of the High Contracting Parties and a Power which is not bound by the present Convention, the Contracting Party shall apply the provisions thereof. This obligation shall stand unless, after a reasonable lapse of time, the Power not bound by the present Convention states its refusal to apply it, or in fact fails to apply it." (4)
The feeling on the subject was so far advanced that the proposal of the International Committee did not stand alone. The Diplomatic Conference was in fact faced from the outset with two other proposals. (5) The first of these, which came from the Canadian Delegation, suggested that the Convention should be applicable to a Power not party to the Convention so long as that Power complied with its provisions. The second proposal, which was from the Belgian Delegation, was in the following terms: "...The Powers which are a Party to the Convention shall invite the Power which is not a Party to it to accept the terms of the said Convention; as from the latter Power's acceptance of the Convention, all Powers concerned shall be bound by it."
The principle encountering no objections, the discussion turned solely on the conditions to be fulfilled. The condition underlying the Canadian proposal, as also the proposal of the International Committee of the Red Cross, was resolutory, whereas that of the Belgian proposal was suspensive. Under the Canadian proposal the signatory Powers were automatically bound, and continued to be bound, so long as the non-signatory Power complied with the Convention. Under the Belgian proposal the signatory Powers were not bound until such time as the non-signatory Power notified its acceptance of the invitation to comply with the Convention. No agreement was possible as between these two proposals. They were both accordingly discarded in favour of the compromise wording of the present text.
The Rapporteur of the Special Committee gives the following explanation of the motives which guided his Committee: "As a general rule, a Convention could lay obligations only on Contracting States. But, according to the spirit of the four Conventions, the Contracting States shall apply them, in so far as possible, as being the codification of rules which are generally recognized. The text adopted by the [p.32] Special Committee, therefore, laid upon the Contracting State, in the instance envisaged, the obligation to recognize that the Convention be applied to the non-Contracting adverse State, in so far as the latter accepted and applied the provisions thereof." (6)
PARAGRAPH 1 -- ARMED CONFLICTS
INVOLVING THE APPLICATION OF THE CONVENTION
This paragraph is entirely new. It fills the gap left in the earlier Conventions, and deprives the belligerents of the pretexts they might in theory invoke for evasion of their obligations. There is no longer any need for a formal declaration of war, or for recognition of the state of war, as preliminaries to the application of the Convention. The Convention becomes applicable as from the actual opening of hostilities. The existence of armed conflict between two or more Contracting Parties brings it automatically into operation.
It remains to ascertain what is meant by "armed conflict". The substitution of this much more general expression for the word "war" was deliberate. One may argue almost endlessly about the legal definition of "war". A State can always pretend, when it commits a hostile act against another State, that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence. The expression "armed conflict" makes such arguments less easy. Any difference arising between two States and leading to the intervention of armed forces (7) is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to human personality is not measured by the number of victims. Nor, incidentally, does the application of the Convention necessarily involve the intervention of cumbrous machinery. It all depends on circumstances. If there is only at single wounded person as a result of the conflict, the Convention will have been applied as soon as he has been collected and tended, the provisions of Article 12
observed in his case, and his identity notified to the Power on which [p.33] he depends. All that can be done by anyone: it is merely a case of taking the trouble to save a human life!
PARAGRAPH 2 -- OCCUPIED TERRITORIES
This provision, which is also new, may at first sight seem almost superfluous; for if there is no military resistance, what victims will there be? But the paragraph, though more especially in place in the Fourth Convention, is not without its value here. To provide for the protection and care of wounded and sick members of the armed forces the Convention also protects a whole series of persons, establishments and property (8); and without this paragraph it would be possible for an Occupying Power to refuse to care for the sick military personnel of the occupied Power. It might requisition or sequestrate for its own purposes medical establishments or property protected by the Convention. It might also take into its service the military personnel of the (non-resistant) occupied Power, including the doctors and other members of its Medical Service, to cite no other examples. Thanks to the present paragraph protection is given not only to the sick military personnel of the occupied country, but also to all the personnel, establishments and
property covered by the Convention, so that they are all free to carry on their charitable work as required; at the same time, of course, the sick, and the protected personnel, establishments and property of the Occupying Power are assured of the respect to which they are entitled.
We may note in this connection that should the circumstances for which the two first paragraphs of Article 2 provide, arise before the expiry of the waiting period of six months after ratification of the Convention, the latter will enter into force before the due date. (9)
PARAGRAPH 3 -- CONFLICTS IN WHICH THE BELLIGERENTS ARE NOT ALL
PARTIES TO THE CONVENTION
1. ' Relations between belligerents parties to the Convention '
The first sentence of this paragraph is taken with slight changes from Article 25 of the 1929 Convention
, in which it ran as follows: "...If, in [p.34] time of war, a belligerent is not a party to the Convention, its provisions shall, nevertheless, be binding as between all the belligerents who are parties thereto."
The provision seems a perfectly natural one. But this was not always the case. The 1864 Convention was silent on the subject; but the authors both of the 1906 Convention and of the 1899 Convention for the adaptation of the 1864 Convention to maritime warfare introduced a ' clausula si omnes, ' under which the Convention was not applicable unless all the Parties to the conflict were equally bound. That was the position when the First World War broke out in 1914; and it is interesting to note that as one of the smallest of the belligerent States, Montenegro, was not party to the Convention, the Convention was not in theory applicable by any of the belligerents. Happily none of them claimed exemption on this ground. All in general honoured their signatures, even though strictly speaking they were not bound to do so. For once, as the commentator on the 1929 Convention remarked, "the facts, backed by the signatures of the signatories and by the humanitarian interests of all, outweighed the law". (10)
It was essential, however, to clarify the position, and to prevent a recurrence in the future of a situation similar to that of 1914. The horrors of the Second World War justify the belief that, if the ' clausula si omnes ' had still been in force then with no further provision governing the situation, the consequences in one connection or another might have been disastrous.
2. ' Relations between Contracting and non-Contracting Parties '
The second sentence added by the Diplomatic Conference of 1949 has certainly the characteristics of a compromise, inasmuch as it does not come to a decision between the suspensive and the resolutory conditions. At first sight it appears to incline towards the Belgian amendment. (11) But, whereas the latter did not make the Convention applicable until after the formal acceptance of the non-Contracting Power, the sentence adopted by the Diplomatic Conference drops any reference to an invitation to be made to the non-Contracting Power, and substitutes [p.35] for the words "as from the latter Power's acceptance" the words "if the latter accepts and applies the provisions thereof".
What then is the position in the interval between the launching of hostilities and the non-Contracting belligerent's acceptance? Is the Contracting Power released from all obligation?
The passage of the report just quoted shows how this not very clear provision should be interpreted. The Conventions, it says, should be regarded "as being the codification of rules which are generally recognized", and it is in their spirit that the Contracting States "shall apply them, in so far as possible". (12)
The spirit and character of the Conventions conclusively indicate that the Contracting Party must apply their provisions from the moment hostilities break out until such time as the adverse Party has had the time and an opportunity of stating his intentions. That is not perhaps a strictly legal solution based on a literal exegesis of the text; but it is to our thinking the only honourable and reasonable solution. It follows from the spirit of the Conventions, and is in accordance with their character, as we have already stated. It is also in accordance with the moral interest of the Contracting Party insofar as it invites the latter to honour the signature he has given before the world. It is in accordance even with his practical interest, because the fact of his making a beginning himself with the application of the Convention will encourage the non-Contracting Party to declare his acceptance, whereas any postponement of the application of the Convention by the Contracting Party is likely to give the non-Contracting Party a pretext for reserving his decision.
There are two conditions to be fulfilled under this part of the paragraph -- (a) acceptance and (b) de facto application of the Convention. What happens if the non-Contracting Party makes no declaration, but in actual fact applies the Convention? Before answering this question, let us see what is meant by accepting the provisions of the Convention.
Is a formal and explicit declaration by a non-Contracting State indispensable? The Rapporteur of the Special Committee seems to say that it is. "A declaration", he wrote, "was necessary, contrary to the Canadian amendment, according to which an attitude on the part of the non-Contracting State in conformity with the Convention would [p.36] have sufficed to make it applicable". He added, it is true, that it was not possible to lay down any uniform procedure in the matter, and that "the Convention would be applicable as soon as the declaration was made. It would cease to be applicable as soon as the declaration was clearly disavowed by the attitude of the non-Contracting belligerent".
Does it follow from this that, if the second condition -- namely the application of the Convention de facto -- is alone fulfilled, the Contracting Party is released from its obligations?
Closely as that may seem to follow from the letter of the text, it does not appear possible to maintain such an interpretation. It would make the application of the Convention dependent on a suspensive condition even more rigid than that of the Belgian proposal, which was itself regarded as being too strict. It would bring about a paradoxical -- not to say, a monstrous -- situation. It would entitle a Power to refuse to recognize rules solemnly proclaimed by itself, while its adversary, though not legally bound by these rules, was scrupulously applying them; and all this only because of the omission of the latter to make a declaration, or because of delay in the transmission of such a declaration.
' Summum jus summa injuria. ' The saying may often be true; but it should never be cited in reference to a humanitarian Convention. The present Convention, like its three sister Conventions, rightly condemns reprisals in the most categorical terms. But would it not be worse than any reprisals to ill-treat wounded or sick persons before one's adversary had done so, merely because one inferred from his silence that he was intending to do so?
The two conditions laid down for the non-Contracting Power are that he should ' accept and apply ' the provisions of the Convention. In the absence of any further indication, there is no reason to assume that "acceptance" necessarily implies an explicit declaration. It can equally well be tacit. It may be implicit in de facto application. These considerations do not in any way minimize the importance of an explicit declaration by the non-Contracting Power. The latter should always make such a declaration, and with the least possible delay. The International Committee of the Red Cross for its part, when it offers its services at the beginning of a conflict, never fails to ask Parties to conflict which are not legally bound by the Convention to declare their intention of applying it or of observing at least its essential principles, as the case may be.
[p.37] In practice any Contracting Power in conflict with a non-Contracting Power will begin by complying with the provisions of the Convention pending the adverse Party's declaration. It will be guided first and foremost by the latter's actions.
Furthermore, although the Convention, as a concession to legal form, provides that in certain circumstances a Contracting Power may legally be released from its obligations, it leaves the Power in question completely free to continue to honour its signature, whatever grounds the adverse Party may afford it for failing to do so.
* (1) [(1) p.29] See ' Report on the Work of the Preliminary
Conference of National Red Cross Societies for the Study
of the Conventions and of various Problems relative to the
Red Cross ' (Geneva, July 26-August 3, 1946, Geneva, 1947,
(2) [(2) p.29] See ' Report on the Work of the Conference of
Government Experts for the Study of the Conventions for
the Protection of War Victims ' (Geneva, April 14-26,
1947), Geneva, 1947, page 8;
(3) [(1) p.30] ' Actes de la Conférence diplomatique de
1929, ' pages 621-622;
(4) [(1) p.31] ' Remarks and Proposals submitted by the
International Committee of the Red Cross, ' Geneva,
February 1949, page 9;
(5) [(2) p.31] ' Final Record of the Diplomatic, Conference of
Geneva, 1949, ' Vol. II-B, pages 53-54 and 107-108;
(6) [(1) p.32] ' Final Record of the Diplomatic Conference of
Geneva, 1949, ' Vol. II-B, page 108 (First Report drawn up
by the Special Committee of the Joint Committee);
(7) [(2) p.32] Or similar forces as described in Article 13;
(8) [(1) p.33] See Chapters III to VI of the Convention;
(9) [(2) p.33] See below, on Article 62, pages 409 ff.;
(10) [(1) p.34] Paul DES GOUTTES, ' Commentaire de la
Convention de Genève du 27 juillet 1929, ' Geneva, 1930,
on Article 25, page 188;
(11) [(2) p.34] See above, page 31;
(12) [(1) p.35] See above, page 31;
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